Government of Jammu and KashmirHome Department

Subject: - Order dated 22.07.2015 of the Hon'ble High Courtof J&K passed in SWP No.2118/2015, MPNo.01/2015, titled Mohan Lal Kaith Vs State ofJammu and Kashmir and another.

Government Order No.566-Home of 2016Dated:24.09.2016

Whereas, in terms of order dated 13.03.2006 ofthe Division Bench of the Hon'ble High Court of J&K passedin LPA (SW) No.148/05 titled State of J&K Vs Mohan LalKaith and on the recommendations dated 24.04.2006 of theSelection Committee of the Home Department, Mr. MohanLal Kaith, was granted one rank out-of-turn promotion asDySP in the pay scale of RS.7500-12000 (pre-revised)notionally w.e.f. 22.09.2003 and regularly from aprospective date, vide Government Order No.Home-159 (P)of 2006 dated 11.05.2006; and

2. Whereas, Mr. Mohan Lal Kaith,representing, thereafter, for granting him,promotion w.e.f 04.08.2000; and

has beenout-of-turn

3. Whereas, on the persistent representations ofMr. M.L Kaith, the Selection Committee, in its meeting heldon 24.09.2012 again considered the case of Mr. M.L. Kaithfor his out-of-turn promotion as DySP from 04.08.2000 i.ethe date when his case had been initially recommended bySP (Ops) Srinagar. The Committee recommended asunder:-

n•••••••• The Committee felt that the decision taken by theSelection Committee in its meeting held on 24.4.2006 wasappropriate, rational, uninfluenced by any considerationand the decision had been taken after taking into accountall the circumstances and the facts of his case. In light ofthis the Committee decided that there was absolutely no

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merit in the representation submitted by Mr. M.L Kaithand accordingly rejected it".

4. Whereas, Mr. Kaith, again approached the Hon'bleHigh Court of J&K, Jammu through the medium of SWPNo.2118/2015, MP No.01/2015 titled Mohan Lal Kaith VsState and another praying therein for his promotion as DySPfrom 04.08.2000 i.e. from the date recommendation for hisout-of-turn promotion has been made, on the analogy ofone Mr. Haq Nawaz and the Hon'ble High Court of J&Kdisposed of the said writ petition vide its order dated22.07.2015, the operative portion of which reads as under:-

"...Accordingly, this petition is disposed of with a directionto the respondents to consider the claim of the petitionerfor promotion to the post of Dy.SP with effect from04.08.2000, in terms of the averments made in the writpetition, annexures appended thereto, recommendationsmade by the respondents in his favour from time to timeand having regard to the benefits extended to thesimilarly circumstanced person (s), i.e. Haq Nawaz, ofcourse, under rules governing the field. Let a decision inthe matter be taken within a period of four weeks fromthe date copy of this order is served upon the respondentsby the petitioner ..... ".

5. Whereas, Mr. Kaith (the petitioner) also filed aContempt Petition, No.50/2016 in SWP No.2118/2015 whichwas considered by the Hon'ble High Court, J&K, Jammu on18.04.2016, 19.07.2016 and 07.09.2016; and

6. Whereas, the Selection Committee of the HomeDepartment considered the case of Mr. M.L Kaith for hisout of turn promotion w.e.f 04.08.2000 i.e the date hiscase had been recommended for promotion on out of turnbasis, and noted that the officer was seeking a benefit onthe analogy of Mr. Haq Nawaz; and

7. Whereas, the details of the case of Mr. HaqNawaz revealed that the claim for out of turn promotion ofMr. Haq Nawaz as Dy.S.P was rejected initially by PHQ videOrder No.1842 of 2005 dated 20.06.2005 pursuant to theOrder dated 23.12.2004 passed in clubbed writ petitions

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SWP No.l018/2000 titled Tilak Raj Vs State and others,and thereafter, in pursuance to the order dated 24.03.2009of the Hon'ble High Court of J&K passed in SWPNo.1144/2005, PHQ again rejected the claim of Mr. HaqNawaz vide Order NO.2079 of 2009 dated 11.06.2009; and

8. Whereas, aggrieved of the order dated11.06.2009 of the PHQ, Mr. Haq Nawaz filed a fresh writpetition (SWP No.1628/2009) before the Hon'ble HighCourt of J&K, Jammu seeking quashment of the said orderand for considering him for out-of-turn promotion, on theanalogy of similarly situated cases; and

9. Whereas, the Hon'ble High Court of J&K, Jammupassed an order on 25.11.2011 in SWP No.1628/2009titled Haq Nawaz Vs State of J&K and others, the operativeportion of which reads as under: -

"...50 viewed, the writ petition is allowed and therespondents are directed to grant out of turnpromotion to the petitioner from the rank ofInspector to Deputy Superintendent of Police w. e.f1998 having regard to the recommendations madeby SP, Rajouri and accordingly DIG, Rajouri-PoonchRange, with all the consequential benefits, on thelines such promotion has been given to InspectorM.L. Kaith as DySP vide Government OrderNO.Home-159 (P) of 2008 dated 11.05.2006 andother similarly situated Police Officers. Therespondents shall comply with the order within fourweeks from the date copy of this order is servedupon the respondents."

10. Whereas, Mr. Haq Nawaz also filed contemptpetition No.239/2012 alleging non-implementation of orderdated 25.11.2011 of the Hon'ble High Court passed in SWPNo.1628/2009, which the Hon'ble High Court considered on26.7.2013,06.09.2013 and 18.11.2013; and

11. Whereas, pursuant to the orders of the Hon'bleHigh Court dated 26.07.2013 passed in contempt petitionNo.239/2012 read with the order dated 25.11.2011 passed

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in SWP No.1628/2009 and the advice of the Department ofLaw, Justice and Parliamentary Affairs, the matter wasconsidered by the Selection Committee of the HomeDepartment in its meeting held on 19.08.2013, whichrecommended that Mr. Haq Nawaz may be promoted asDySP out-of-turn w.e.f 08.06.2000 i.e. from the date hecompleted five years' service as Inspector. Orders to thiseffect were issued vide Govt. Order No.404-Home of 2013dated 25.09.2013 and based on the said order, the HomeDepartment also filed a compliance report before theHon'ble High Court; and

12. Whereas, pursuant to the orders dated06.09.2013 & 18.11.2013 of the Hon'ble High Court passedin the Contempt Petition CMA No.135/2013 in SWPNo.239/2012 and CMA No.75/2013 in SWP No.1628/2009,the Selection Committee of the Home Department againconsidered the case of Mr. Haq Nawaz in its meeting heldon 28.11.2013 and concluded that there was no scope ormerit for considering him for out-of-turn promotion froman earlier date and that such a move would lead to openingof all settled cases and set a wrong precedence in thePolice Department; and

13. Whereas, the Hon'ble High Court vide its orderdated 03.12.2013 passed in the Contempt Petition CMANo.239/2012 and CMA No.75/2013 in SWP No.1628/2009,inter-alia, directed appearance of Principal Secretary to theGovernment, Home Department, before the Court toexplain his position vis-a-vis non-compliance of thejudgement so that the contempt petition, is brought to itslogical end at the earliest; and

14. Whereas, keeping in view the orders of theHon'ble High Court and notwithstanding the observations ofthe Selection Committee dated 28.11.2013, the HomeDepartment was constrained to grant one rank out-of-turnpromotion as DySP to Mr. Haq Nawaz w.e.f 08.06.1998instead of 08.06.2000, vide Government Order No.Home-548 of 2013 dated 19.12.2013, with the stipulation that hisout-of-turn promotion as DySP shall not form basis or

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precedence for any other similarly situated case(s), if any;and

15. Whereas, on the other hand, Mr. Mohan Lal Kaith,Sub-Inspector No.3609jNGO was promoted as Inspector on22.09.1998 and figured at S.No.380 in the seniority list ofInspectors. Consequent to his out-of-turn promotion asDySP w.e.f 22.09.2003, he superseded around 270 officersand in the event of his promotion as DySP on out-of-turnbasis w.e.f 04.08.2000, he will supersede another 70officers who are otherwise senior to him. Further, the Sub-Inspectors appointed alongwith Mr. M.L. Kaith have earnedtwo promotions and they are working as DySPs in a stop-gap arrangement; and

16. Whereas, the Selection Committee of the HomeDepartment again considered the matter on 15th

September, 2016 in pursuance of court orders and madethe following observations and recommendations: -

"Committee observed that there is no provision in theexisting Out-of-Turn Promotion Policy to consider anofficer for grant of out-of-turn promotion from aretrospective date or from the date ofrecommendation made by his Controlling Officer andas a matter of principle, the out-of-turn promotionsare to be granted from a prospective date and notfrom a retrospective date. The out-of-turn promotionissue of Mr. M.L Kaith has since been settled by theearlier Selection Committees and that there was noscope for review of the decision taken in his case,after lapse of around a decade. The Committeeemphasized that grant of out-of-turn promotion to Mr.Haq Nawaz from the date of recommendation hasbeen done by the Home Department undercompulsive/coercive orders of the Hon'ble Court, as aone-time exception, and that the Committee did notendorse or recommend him for out-of-turn promotionfrom the date of recommendation made by SPconcerned. Further, the case of Mr. Haq Nawaz didnot adversely impact any in-service officer, for havingalready retired on 30.09.2012 and also that he isentitled to notional benefits in the matter of

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placement in the Selection Grade of DySP andpromotion as SP. Contrary to this, the out-of-turnpromotion of Mr. M.L Kaith from 04.08.2000 wouldhave serious implications in that it would result insupersession of around 70 officers including 42 directrecruit DySPs of 2001-02 batch, thereby leading todifficulties in the cadre management and avoidablelitigations. Further, there is no similarity between hiscase and that of Mr. Haq Nawaz in that the latter hasbeen granted out-of-turn promotion merely on thestrength of coercive orders of the Hon'ble Court andnot on merit. The Committee, accordingly, felt thatthere were no cogent grounds as would justify hisout-of-turn promotion as DySP w.e.f. 04.08.2000 andthat the benefit already taken by him wascommensurate to his contribution in the PoliceDepartment, based on which he has risen to the postof Superintendent of Police in in-charge capacity.While reiterating the decision taken by it in its earliermeeting held on 24.09.2012, the Committee held thatthe petitioner having already been given his due inthe matter of out-of-turn promotion as DySP, therewas no scope or merit warranting review of such adecision. The Committee, accordingly, advised theHome Department to accord consideration to theclaim of the petitioner in light of the court orders andreject it through a speaking order, with the priorapproval of the Competent Authority, afterelaborately spelling out the background/circumstances in which one rank out-of-turnpromotion was granted to Mr. Haq Nawaz. Thedepartment was further advised to file the statementof facts before the Hon'ble High Court urgently toavoid any adverse orders from the Hon'ble HighCourt."

17. Whereas, the recommendations of the SelectionCommittee of the Home Department were placed before theCompetent Authority, who approved the recommendations,made by the Selection Committee.

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18. Now, therefore, in compliance to the Order dated22.07.2015 of the Hon'ble High Court of J&K passed in SWPNo.2118/2015, MP No.01/2015, titled Mohan Lal Kaith VsState and another, the claim of Mr. Mohan Lal Kaith for out-of-turn promotion as DySP, retrospectively from04.08.2000, having been considered was found devoid ofmerit and hence rejected.

By order of the Government of Jammu andKashmir.

Sd/-CR. K. Goyal) IAS

Principal Secretary to the GovernmentHome Department

NO.Home/PB-I/36/2005 Dated:24.09.2016.Copy to the: -~ Principal Secretary to Hon'ble Chief Minister, J&K.2. Director General of Police, J&K.3. Add!. Advocate General, Hon'ble High Court, J&K,

Jammu.4. Concerned Officer.5. Private Secretary to the Chief Secretary.6. Private Secretary to the Principal Secretary to the

_ .§.o¥ernment, Home Department.t-r.Incharge, Website Home Department.

8. Government order file/Stock file. r-d5 \ 6

(Syed Ya .~IlJl.F0 q -i-Under Secretary to tfie $overnment~ .. Home Department

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